JUDGMENTBY: LEE HUN HOE CJ (BORNEO)

(delivering the judgment of the Court): This appeal is against the decision of the learned judge in staying all proceedings in the High Court pending the outcome of the appeal against the decision of the Native Officers Court in Kuching.

The parties were married in October 1964. They have four children, three boys and a girl whose ages range from 9 years to 17 years. During marriage appellant made a number of investments in Malaysia in the name of respondent with the purported intention that respondent should be a trustee for him and their children. One such investment was a piece of land with buildings thereon situate at Sungei Apong Road, Kuching, described as Lot 3284, section 64, Kuching Town Land District (hereinafter referred to as Lot 3284). According to appellant not long after the transfer of Lot 3284 respondent changed her feeling for him and refused to stay with him. In fact, respondent sued him for divorce in the Native Officers Court in Kuching. On May 15, 1974 the Native Officers Court dissolved the marriage. Pursuant to section 41 of the Undang-Undang Mahkamah Melayu Sarawak it was held, inter alia, that all properties "harta pencarian" acquired during the marriage are to be divided between the parties in the proportion of one-third to respondent and two-thirds to appellant. Appellant appealed against the decision. Consequently, by a writ dated July 2, 1974 appellant sued respondent and claimed for (a) a declaration that he is the owner of Lot 3284; (b) a declaration that respondent held Lot 3284 in trust for him; (c) an order that respondent transfers Lot 3284 to appellant and (d) costs.

Respondent disputed the claim. She contended that Lot 3284 was an absolute gift from appellant. Alternatively, she claimed Lot 3284 to be "harta pencarian" and she is entitled to one-third share therein. In her counterclaim she referred to the decision of the Native Officers Court and asked appellant: --

(1) for an account of all properties ( harta pencarian) both real and

personal acquired during their marriage; and

(2) for the transfer to her of one-third share of all such properties (

harta pencarian). Pending appeal the decision of the Native Officers

Court is binding on them.

Appellants counsel complained about the appeal not being heard. But in his written submission he stated that he did not take steps to enable the District Native Court to hear the appeal as appellant is not prepared to take respondent back as his wife since she has now been married to someone. There is nothing to stop him from appealing against the decision on the division of properties. He merely said he did not wish to proceed with the appeal against the decision of the Native Officers Court on the question of properties. He said in abandoning the appeal on the division of properties, he has nothing to lose. All these are his problems. How he sought to resolve them is for him to decide. But, having agreed to be tried by a special forum to which he is bound he cannot try to avoid the decision of that forum by seeking a remedy in respect of the same property in the guise of a declaration in the ordinary forum.

The remedies he sought are available in the Native Court of Appeal. Section 9(2) of the Native Courts Ordinance (Cap. 43) makes clear that the Native Court of Appeal shall have the same powers as vested in the High Court.

Before the learned judge appellant argued that although the Native Officers Court had jurisdiction to grant divorce it had no jurisdiction to make any order respecting division of property. No authority was cited for his sweeping proposition. Following a dissolution of marriage it is not unusual for the court granting the divorce to make a distribution order regarding the properties acquired during the marriage in appropriate shares to the parties in accordance with their customs. A guide has been drawn up to assist judges, magistrates and others on such matters. This can be found in App

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